{"id":173063,"date":"2003-08-04T00:00:00","date_gmt":"2003-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-state-by-on-4-august-2003"},"modified":"2018-02-21T06:06:15","modified_gmt":"2018-02-21T00:36:15","slug":"shanmugam-vs-state-by-on-4-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-state-by-on-4-august-2003","title":{"rendered":"Shanmugam vs State By on 4 August, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Shanmugam vs State By on 4 August, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 04\/08\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nC.A.No.392 of 1999  and C.A.No. 802 of 1999\n\nC.A.No.392 of 1999:\n\n\nShanmugam                              .. Appellant\n\n-Vs-\n\nState by\nIntelligence Officer\nNarcotic Control Bureau\nSouth Zone\nChennai                                         .. Respondent<\/pre>\n
C.A.No.802 of 1999:<\/p>\n
\n\nIntelligence Officer\nNarcotic Control Bureau\nSouth Zone\nChennai                                         .. Appellant\n\nvs\n\n1. P.Raja Singh\n2. B.K.Asokan\n3. K.Anand                                      .. Respondents\n\n<\/pre>\n
        Both the criminal appeals are preferred under Sec.374(2) of  The  Code
\nof  Criminal  Procedure against the judgment of the Special Judge ( NDPS Act),
\nChennai made in C.C.No.111 of 1994 and dated 30.3.1999.<\/p>\n
\n\n!For Appellant in\nCA 392\/99 and\nRespondents in\nCA 802\/99               :  Mr.S.Hameed Ismail\n\n^For Respondent in\nCA 392\/99 and\nAppellant in\nCA 802\/99               :  Mr.P.N.Prakash\n                        Special Public Prosecutor\n                        (NDPS)\n\n:COMMON JUDGMENT\n\n        This judgment shall govern both these appeals.\n<\/pre>\n
        2.  The first appeal is brought forth by  A-3  who  was  found  guilty
\nunder Sec.8  read  with  17 of the N.D.P.S.  Act and sentenced to undergo R.I.
\nfor 10 years and to pay a fine of Rs.1,00,000\/- in default to undergo 2  years
\nR.I.,  while the later appeal is brought forth by the State aggrieved over the
\njudgment of acquittal made by the trial Court in respect of A-1, A-2 and A-4.\n<\/p>\n
        3.  The short facts necessary for the disposal of both  these  appeals
\ncan be stated as follows:\n<\/p>\n
        (a)  The  accused 1 to 4 as a gang was operating between India and Sri
\nLanka across the straits.  Pursuant to  the  intelligence  gathered,  A-3  was
\nintercepted  by  P.W.1 Tmt.R.Vijayalakshmi, an Intelligence Officer and P.W.12
\nChandrasekaran, Superintendent on 16.10.1993  at  11.00  P.M.    in  Kolathur,
\nChennai.   A-3 was travelling in an auto rickshaw bearing Registration No,.TSH
\n1168 driven by P.W.5 Shenbagasekaran.  P.  Ws.1 and 12  seized  970  grams  of
\nheroin in  the presence of P.W.5 and one Nawab John.  Two samples under M.Os.2
\nand 3 were drawn from the seized heroin,  and  the  entire  seizure  has  been
\nrecorded in  Ex.P1  mahazar.    The rest of the contraband is marked as M.O.1.
\nThe said P.W.12 is an Officer of gazetted rank, and  thus,  he  was  empowered
\nunder  Sec.41(2)  of  NDPS  Act  to  conduct  the  search  and th e seizure or
\nauthorise the subordinates to do the same.  After seizure of the  heroin  from
\nA-3, his statement under Sec.67 of the NDPS Act was recorded by P.W.1, and the
\nsame is marked as Ex.P2.  A-4 was intercepted on 17.10.93 near Central Railway
\nStation at  8.45  A.M.    by P.W.6 Gopalan, when he just arrived from Delhi by
\nG.T.  Express.  The belongings of A-4 was searched in the  presence  of  P.W.8
\nSathya,  and incriminating documents like air tickets, train ticket, telephone
\nnumbers, visiting cards and cash  of  Rs.29,000\/-  were  seized  under  Ex.P41
\nmahazar.   After the search and the seizure, the statement of A-4 under Sec.67
\nof the Act was recorded in the presence of P.W.6 at the NCB Office and  marked
\nas Ex.P42.\n<\/p>\n
        (b)  On  17.10.93  at  11.30  A.M., Room No.206, Visweshwara Bhavan at
\nMillers Road, Madras 10, which  was  in  the  occupation  of  A-2  Asokan  was
\nsearched  by  P.W.4 Ashokraj in the presence of P.W.9 Gopal and one Saravanan.
\nThe incriminating documents like spiral note book containing certain  details,
\na letter  head  of  Oxford Furniture, etc., were recovered in the room.  After
\nthe search and seizure, the statement of  A-2  was  recorded  by  P.W.4  under
\nEx.P38.   On  17.10.1993,  the  residence  of  A-1  Rajasingh  at  Aziz Nagar,
\nKodambakkam, Madras 24 was searched at 1.15 P.M.  by P.W.2 and P.W.12  in  the
\npresence of  the  independent witnesses P.W.3 Muthu and one Mohan.  During the
\nsearch, incriminating documents under Exs.P26  to  P31  were  recovered  under
\nEx.P21 mahazar.   Thereafter, A-1’s statement under Sec.67 of the NDPS Act was
\nrecorded by P.W.2, and the same is marked as Ex.P22.  In  the  course  of  the
\nenquiry  under  Sec.67  of  the Act, A-3 revealed that he has kept 25 kilos of
\nopium concealed at a place in Mariyur, Ramnad District, and that he would show
\nthe place where he had kept the contraband hidden  if  he  is  taken  to  that
\nplace.   After  recording  the  said  statement,  A-1 was arrested by P.W.2 by
\nserving the arrest memo marked as Ex.P23.  A-2  was  arrested  by  P.W.4  vide
\narrest memo  under  Ex.P39.   A-3 was arrested by P.W.1 vide arrest memo under
\nEx.P3, and A-4 was arrested by P.W.6 under Ex.P43 arrest memo.    After  their
\narrest,  all  the  accused were produced before the Chief Judicial Magistrate,
\nEgmore, Madras vide Ex.P6 remand application.  The seized heroin  under  M.O.1
\nwith  the  two  samples  under M.Os.2 and 3, cash of Rs.29,000\/- and all other
\ndocuments that were seized from various places as stated above were  submitted
\nto the remanding Magistrate along with remand application under Ex.P6 .\n<\/p>\n
        (c)  Since  A-3 disclosed that he had concealed 25 kilos of opium at a
\nplace in Mariyur, P.W.1 requested the remanding Magistrate to give A-3 in  her
\ncustody.   Accordingly  departmental  custody  of  A-3  was given on 18.10.93,
\npursuant to which P.Ws.1 and 12 took A-3 to his native  place  at  Mariyur  in
\nRamnad District.  They reached Mariyur and very near his hut 25 kilos of opium
\nconcealed by  him  was  recovered by P.Ws.1 and 12 under Ex.P5 mahazar.  After
\nseizing the contraband, A-3 was returned to judicial custody and was  produced
\nbefore  the  remanding  Magistrate along with 25 kilos of seized contraband of
\nopium on 21.10.9 3 for further judicial custody.  The samples drawn  from  the
\nsaid heroin as well as from the opium were sent for chemical analysis.  P.W.10
\nAmeerrasakkhan, the Chemical Examiner by his report under Ex.P56 confirmed the
\npresence of  Di-acetyl  Morphine in M.O.2.  Further P.W.10 in his report under
\nEx.P57 has confirmed that the 25 samples were opium.  As a measure of  further
\ninvestigation,  a  sum of Rs.40,000\/- was taken possession from one Dhanraj, a
\nrelative of A-1 by P.Ws.1 and 12 under Ex.P18 on 22.10.93.  The  said  sum  of
\nRs.40,000\/- is  marked  as M.O.87.  Following the same, the Manager of the STD
\nBooth from where A-1, A-2 and A-3 used to make telephone calls  to  Delhi  and
\nSri Lanka  was  examined under Sec.67 of the Act.  He was examined in Court as
\nP.  W.14 Srinivasan.  P.W.14 identified A-1 to A-3 as persons who used his STD
\nBooth to make national and overseas calls.  The telephone calls made from  the
\nSTD Booth telephone No.4833961 between 1.8.93 and 15.8.93 to certain specified
\nnumbers  in  Madhya  Pradesh,  Delhi  and  Sri  Lanka  were  obtained from the
\nTelephone Department vide  Ex.P61.    Based  on  the  materials  collected,  a
\ncomplaint under Sec.36(a)(i)(d)  of  the N.  D.P.S.  Act was filed against A-1
\nto A-4.\n<\/p>\n
        4.  The trial Court framed the necessary charges of conspiracy against
\nA-1 to A-4 for trafficking in 970 grams of heroin and 25 kilos  of  opium  and
\nalso individual charge of possession of heroin and possession of opium against
\nA-3 alone.\n<\/p>\n
        5.   In  order  to  prove  its  case,  the prosecution has examined 15
\nwitnesses and marked 63 exhibits and 87 material objects.  After completion of
\nthe evidence of the prosecution, the accused were questioned under Sec.313  of
\nCr.P.C.   as  to  the incriminating circumstances found in the evidence of the
\nprosecution witnesses, which they flatly denied as false.    The  defence  has
\nexamined 2 witnesses  and  marked  11  documents.   Ex.C1 was also marked.  On
\nconsideration of the rival submissions and  scrutiny  of  the  materials,  the
\ntrial Court found A-1 guilty under Sec.8 read with 17 of the N.D.P.S.  Act and
\nsentenced him  to  undergo  the  imprisonment as referred to above.  The trial
\nCourt has found A-1, A-2 and A-4 not  guilty  of  the  charges  against  them.
\nAggrieved over the conviction and sentence imposed on A-3, the first appeal is
\nbrought  forth by him, while aggrieved over the acquittal of A-1, A-2 and A-4,
\nthe State has brought forth the next appeal.\n<\/p>\n
        6.  Arguing for the appellant\/A-3,  the  learned  Counsel  Mr.S.Hameed
\nIsmail  interalia  raised  the following submissions for consideration by this
\nCourt:\n<\/p>\n
        The trial Court has acquitted A-1, A-2 and  A-4  of  all  the  charges
\nlevelled   against   them,  since  the  evidence  was  not  only  lacking  but
\nunbelievable.  It is pertinent to point out that  the  trial  Court  has  also
\nacquitted  the  appellant\/A-3  in  respect  of  the  accusation that he was in
\nillegal possession of 970 grams of heroin, but has found him guilty in respect
\nof his illegal possession of 25 kilos of opium at Mariyur.    The  prosecution
\nhas not  chosen  to  examine  the mahazar witnesses as found under Ex.P5.  The
\nprosecution has not tendered any explanation also in that regard,  and  hence,
\nthe evidence that was available in the hands of the prosecution was P.Ws.1 and
\n12 only.    Under  such circumstances, the evidence of D.W.2 was more credible
\nand trustworthy.  In respect of the so-called  seizure  of  opium,  the  lower
\nCourt has  failed  to  give proper appreciation of the evidence of D.W.2.  The
\nlower  Court  has  agreed  that  the  defence  case  that  there   was   gross
\nnoncompliance and violation of the mandatory provisions under Sec.41(1) & (2 )
\nand Ss 50  and  57 of the N.D.P.S.  Act.  In view of the same, the lower Court
\nhas acquitted the appellant\/A-3 in respect of the possession of 970  grams  of
\nheroin.   There  are  lot  of  major contradictions present in the evidence of
\nP.Ws.1 and 12.  In view of those contradictions, their testimonies should have
\nbeen rejected by the lower Court.  The prosecution has filed a memo  that  the
\nmahazar  witnesses  in connection to the seizure of 25 kilos of opium were not
\nat all traceable, and the same should have been rejected by the lower Court as
\na false statement of fact.  Since the provisions of the NDPS Act are stringent
\nand the punishment is so graver, the prosecution is expected to exercise  care
\nand prove  its  case  beyond reasonable doubt.  But, in the instant case, when
\nthe prosecution has come forward to state that he was in illegal possession of
\n25 kilos of opium, it has not taken care to examine the mahazar witnesses, but
\nrelied on the evidence of its own officials.  Under such circumstances, the  a
\nppellant\/A-3 should be acquitted of the charges levelled against him.\n<\/p>\n
        7.   In  answer  to  the  above, the learned Special Public Prosecutor
\nMr.P.N.Prakash would submit that the appellant\/ A-3 was taken  to  custody  by
\nthe  officials,  after  he was produced before the concerned Court, and as per
\nthe information given him, which was recorded earlier  and  filed  before  the
\nCourt,  A-3  took  the  officials  namely  P.Ws.1  and 12 to Mariyur in Ramnad
\nDistrict, and nearby his house, he unearthed 25 kilos of opium  and  the  same
\nwas  recovered  under  Ex.P5  mahazar  in  the  presence  of  two  independent
\nwitnesses; that the prosecution despite hectic attempt could not  trace  those
\nwitnesses, and hence, they could not be examined; that a memo was filed before
\nthe  lower  Court,  which  was accepted by the trial Court; that P.Ws.1 and 12
\nhave given cogent evidence in that regard; that the property was also produced
\nimmediately after the seizure was made; that  under  such  circumstances,  the
\nlower  Court  was perfectly correct in relying on the evidence and finding the
\nappellant\/A-3 guilty, and hence, the judgment of the lower Court in respect of
\nA-3 has got to be sustained.\n<\/p>\n
        8.  Assailing the judgment  of  acquittal  by  the  lower  Court,  the
\nlearned  Special  Public  Prosecutor for the State in C.A.No.802\/99 raised the
\nfollowing submissions for consideration by this Court:\n<\/p>\n
        The trial Court has acquitted  A-1,  A-2  and  A-4  stating  that  the
\nprosecution  has  failed to adduce satisfactory evidence regarding conspiracy.
\nIt was because  of  the  non-appreciation  of  the  evidence  adduced  by  the
\nprosecution in that regard.  The statement of A-3 was recorded under Sec.67 of
\nthe NDPS Act at the earliest, wherein he has referred to A-1, A-2 and A-4, and
\npursuant  to  the  same,  the prosecution documents namely Exs.P25 to P31 from
\nA-1, Exs.P33 to P37 from A-2 and Exs.P45 to P49 from A-4 were  seized.    They
\nwould  clearly  speak about the association of the accused with each other and
\nwould clearly establish the conspiracy in which each and every accused  had  a
\nrole to  play.  The recovery of those documents effected from A-1, A-2 and A-4
\nwould clearly corroborate the statement of A-3.  In a case of conspiracy, what
\nis expected in  law  is  not  a  corroboration  of  each  and  every  material
\nparticular, but a general corroboration would be suffice.  The lower Court has
\nfailed to  note that there was no satisfactory explanation for retraction.  If
\nthe statements are voluntary and retracted subsequently, it would indicate the
\nafter thought, and those voluntary statements  could  be  relied.    From  the
\nevidence  available,  it  was  very  clear  that  all  the accused 1 to 4 have
\ninvolved in clandestine activities, and hence, there cannot  be  any  distinct
\nand direct  evidence.    The  conspiracy aspect of the case was necessarily an
\ninferential fact fromm the proved facts and circumstances.   The  lower  Court
\nhas  taken  a  wrong  view that every link in the conspiracy was to be proved.
\nThe lower Court has taken into consideration the evidence of P.W.9, a  hostile
\nwitness  and  hence  should  have rejected the interested evidence of D.W.1 as
\nregards A-1.  Before coming to the conclusion on the question  of  conspiracy,
\nthe lower  Court  has  not assessed the evidence in its totality.  The reasons
\nadduced for acquitting A-1, A-2 and  A-4  on  the  charge  of  conspiracy  are
\nunsound and  unsustainable.    Hence,  the  judgment of acquittal of the trial
\nCourt has got to be set aside, and the respondents\/A-1, A-2 and A-4 should  be
\nfound guilty of the charge of conspiracy under Sec.29 of the NDPS Act.\n<\/p>\n
        9.   Strongly  opposing  all  the  above contentions of the State, the
\nlearned Counsel for the respondents\/A-1, A-2 and A-4 would submit  that  there
\nwas  no  evidence on the side of the prosecution as to the conspiracy; that no
\ncircumstance was also brought forth that A-1, A-2 and A-4 have conspired along
\nwith A-3; that the lower Court on discussion of the evidence  in  extenso  has
\ncome  to  the  correct conclusion that the charge of conspiracy was not at all
\nproved by the prosecution, and thus, the appeal by the State  has  no  merits,
\nand it has got to be dismissed.\n<\/p>\n
        10.  This Court paid its full attention on the submissions made by the
\nlearned  Counsel for the accused and the learned Special Public Prosecutor for
\nthe State.  But, the Court is unable to notice any merit in  either  of  these
\nappeals.\n<\/p>\n
        11.   The  gist of the prosecution case as could be seen above against
\nthe appellant\/A-3 was that he  was  intercepted  on  16.10.1993  by  P.W.1  an
\nIntelligence  Officer  and P.W.12 Superintendent, both attached to the N.C.B.,
\nwhen he was travelling in an auto driven by P.W.5; that  after  following  the
\nprocedural  formalities  970  grams  of  heroin  was recovered from him in the
\npresence of P.W.5 and another witness, not examined; that samples were  taken;
\nthat  his statement under Sec.67 of the NDPS Act was recorded; that a case was
\nregistered; that he was taken to the concerned Court along with  the  material
\nobjects; that they were all produced before the Court, and A-3 was remanded to
\njudicial custody.   Insofar as the seizure of 970 grams of heroin, the samples
\nwere put to chemical analysis, and they found to contain a narcotic  substance
\nheroin.  The Court below believed the evidence adduced by the prosecution that
\nthere  was  a seizure of 970 grams of heroin, as put forth by the prosecution.
\nBut, the trial Court found that the mandatory provisions under Ss  42  and  50
\nhave  not  been  complied with strictly, and hence, that would be fatal to the
\nprosecution case, and rejected that part of  the  prosecution  case.    It  is
\npertinent  to  point out that that part of the judgment of the Court below has
\nnot been appealed against.  But, the prosecution came forward with  a  further
\ncase against the appellant\/A-3 that after he was remanded to judicial custody,
\nan  application  was filed before the concerned Court seeking his custody; and
\nthat custody was given; that while he was in the custody  of  the  Department,
\npursuant  to  his  information given in the statement recorded under Sec.67 of
\nthe NDPS Act, he took the  officials  P.Ws.1  and  12  to  Mariyur  in  Ramnad
\nDistrict  and  nearby  his  house, he unearthed 25 kilograms of opium, and the
\nsame was seized under  Ex.P5  mahazar  in  the  presence  of  two  independent
\nwitnesses, and  the  same  was  produced before the concerned Court.  Now, the
\nlower Court has appraised the evidence adduced  by  the  prosecution  and  has
\nfound him guilty and rightly too.\n<\/p>\n
        12.   It  is  true  that  both  the  mahazar  witnesses  have not been
\nexamined.  A memo was filed by the prosecution before the trial Court  stating
\nthat  the  witnesses  could  not traced, and hence, they could not be produced
\nbefore the trial Court to be examined.  But, it remains to be stated that  the
\nevidence  of  P.W.1,  who effected the seizure, has been fully corroborated by
\nthe evidence of P.W.12.  A seizure memo has also  been  prepared,  a  copy  of
\nwhich  has  also  been served on A-3 and has also been filed before the Court.
\nOne other circumstance present in  the  prosecution  case  is  the  nature  of
\nconfession  so  made  by A-3 at the time of the original statement recorded by
\nthe officials under Sec.67 of the Act even before he was produced  before  the
\nconcerned  Court,  and  only  thereafter,  a  requisition  was made before the
\nconcerned Court for the custody of A-3, pursuant to which  he  has  taken  the
\nofficials to his native place and produced 25 kilograms of opium, and the same
\nhas been  seized  following the procedural formalities.  This fact of seizure,
\npursuant to the statement given by him, which was  also  produced  before  the
\nconcerned  Court at the earliest and the recovery of the same as a consequence
\nthereon along with the evidence adduced through P.Ws.1 and  12  would  clearly
\nindicate that  it was in his illegal possession.  It is pertinent to note that
\na rebuttable presumption was available to him, but, he has failed  to  do  the
\nsame.   Hence,  it  is  a case, where the lower Court was perfectly correct in
\nrecording a finding that the appellant\/A-3 was in  illegal  possession  of  25
\nkilograms of  opium  and that he was guilty for the same.  The Court is unable
\nto notice any infirmity or  illegality  on  the  procedures  followed  by  the
\nofficials  or rebuttable evidence to hold that A-3 had not the culpable mental
\nstate.  Therefore, there is nothing to interfere  in  the  conviction  of  the
\nappellant\/A-3 by the trial Court.\n<\/p>\n
        13.  So far as the appeal by the State is concerned, the specific case
\nof  the  State  was  that  A-3 was found in illegal possession of 970 grams of
\nheroin, and he has given a statement recorded under Sec.67 of  the  NDPS  Act,
\nwherein  he  has  referred  to  the  other  accused  namely A-1 , A-2 and A-4,
\npursuant to which A-4 who came from Delhi by G.T.  Express was intercepted  on
\n17.10.1993  and all the incriminating documents were recovered from him, and a
\nstatement was recorded under Sec.67 of the Act by P.W.6 and marked as  Ex.P42;
\nthat  likewise  on  17.10.93,  Room No.206 Visweshwara Bhavan at Millers Road,
\nMadras which was in the occupation of  A-2,  was  searched  by  P.W.4  in  the
\npresence  of  the witnesses, and incriminating documents like spiral note book
\ncontaining certain details, a letter head  of  Oxford  Furniture,  etc.,  were
\nrecovered;  that after the search and seizure, a statement of A-2 was recorded
\nunder Sec.67 of the Act by P.W.4 and marked as Ex.P38; that on the  same  day,
\nthe  residence of A-1, according to the prosecution the prime accused, at Aziz
\nNagar, Kodambakkam, Madras was searched by P.W.2 and P.W.12 in the presence of
\nthe witnesses, and incriminating  documents  namely  Exs.P26  to  Ex.P31  were
\nrecovered  under Ex.P21 mahazar, and thereafter, a statement was recorded from
\nA-1.  What was contended by the prosecution before the Court below and equally
\nhere also is that in the statement made by A-3, recorded under Sec.67  of  the
\nNDPS Act, he referred to all the three accused namely A-1, A-2 and A-4, and at
\nthe  time  of search number of documents were recovered from them, which would
\nclearly establish the association of the accused with  each  other,  and  they
\nwould  establish the conspiracy; and that they had a role to play in the crime
\nin question namely the trafficking in 970 grams of heroin, what was originally
\nin the possession of A-3, and further in order to prove the same, the  Manager
\nof  the  telephone  booth  has been examined as P.W.14, who clearly identified
\nA-1, A-2 and A-3 and has also deposed that they used  to  book  STD  calls  to
\ndifferent  places  including  Delhi  and  Sri Lanka during the relevant period
\nnamely 1.8.1993 to 15.8.1993, and apart  from  that,  certain  documents  were
\nrecovered  from  A-4,  wherein  a letter head of Oxford Furniture of Delhi was
\nfound, which would clearly speak to the fact of conspiracy, and hence, not all
\nthe particulars have got to be proved, but a corroboration in general would be
\nsuffice, and the same has been done in the case on hand.  The Court is  unable
\nto  notice any evidence to connect A-1, A-2 and A-4 to the crime of conspiracy
\nin question.  It is not in dispute that no contraband was recovered  from  any
\none of  these three accused namely A-1, A-2 and A-4.  They were also not found
\nin the company of A-3.   What  was  available  for  the  prosecution  was  the
\nstatement recorded  from  A-3.   As rightly pointed out by the learned Special
\nPublic Prosecutor, there has been reference to A-1, A-2 and  A-4.    But,  the
\nCourt  is  of  the considered view that the same would not be suffice to prove
\nthe theory of conspiracy.  The prosecution has relied on Exs.P25 to P31 seized
\nfrom A-1, Exs.P33 to P37 from A-2 and Exs.P45 to 49 from A-4.   Through  these
\ndocuments,  the  manner  the association of A-1, A-2 and A-4 along with A-3 or
\nA-1, A-2 and A-4 inter-se is not shown by the prosecution in any way.   In  no
\none  of these documents, the name of A-3 or anything to connect that 970 grams
\nof heroin, could be found.  It is pertinent to point out  that  the  officials
\nhave  categorically deposed before the trial Court that even after the seizure
\nof those documents, they did not make any further investigation in respect  of
\nthe details  found  in those documents.  This would clearly indicate that they
\nhave thoroughly failed to investigate the same.  But, they came out  with  the
\ncase of  conspiracy  relying on those documents surprisingly.  On mere seizure
\nof those documents from A-1, A-2 and A-4 without any  corroborative  piece  of
\nevidence  and  in  the absence of anything to connect those documents with the
\ncrime in question, at no stretch of imagination, the Court can hold  that  the
\nconspiracy theory  put  forth by the prosecution was proved.  Hence, the lower
\nCourt was perfectly correct in holding that the case of the  prosecution  that
\nA-1,  A-2 and A-4 hatched up a conspiracy to commit the offence was not proved
\nin any way.  In that regard, the Court has to necessarily affirm the  judgment
\nof the Court below.\n<\/p>\n
        14.   In the light of the above reasons, the Court is unable to notice
\nany illegality or infirmity  either  in  the  conviction  of  A-3  or  in  the
\nacquittal of A-1, A-2 and A-4 made by the lower Court.  Coming to the question
\nof  sentence,  the  lower  Court has sentenced the appellant\/A-3 to undergo 10
\nyears R.I.  and to pay a fine of Rs.1,00,000\/- in default to undergo  2  years
\nR.I.  under  Sec.8  read  with  17  of the NDPS Act.  In view of the facts and
\ncircumstances of the case, the Court is of the view that while  affirming  the
\nsentence of  imprisonment  and fine, the default sentence of 2 years R.I.  has
\ngot to be reduced to 6 months R.I., and the interest  of  justice  would  also
\nrequire the same.\n<\/p>\n
        15.  In  the  result, the default sentence of 2 years R.I.  imposed by
\nthe lower Court on the appellant\/A-3 is modified, and the appellant\/A-3  shall
\nundergo 6  months  R.I.    in  the  event of default of payment of fine amount
\nawarded by the lower Court.  In other respects,  the  judgment  of  the  lower
\nCourt is  confirmed.    With the above modification, both the criminal appeals
\nare dismissed.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
To:\n<\/p>\n
1) The Special Judge – NDPS Act, Chennai.\n<\/p>\n
2) The Principal Judge, Chennai.\n<\/p>\n
3) The Superintendent, Central Prison, Vellore.\n<\/p>\n
4) The Special Public Prosecutor-NDPS, Chennai.\n<\/p>\n
5) The D.I.G.  of Police, Chennai 4.\n<\/p>\n
6) The Intelligence Officer, Narcotic Control Bureau,
\nSouth Zone, Chennai.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shanmugam vs State By on 4 August, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04\/08\/2003 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.A.No.392 of 1999 and C.A.No. 802 of 1999 C.A.No.392 of 1999: Shanmugam .. Appellant -Vs- State by Intelligence Officer Narcotic Control Bureau South Zone Chennai .. Respondent C.A.No.802 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-173063","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShanmugam vs State By on 4 August, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shanmugam-vs-state-by-on-4-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shanmugam vs State By on 4 August, 2003 - 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